Sunday, April 24, 2011

Update: Please read Heather Martens' article about the bill on the Minnesota Public Radio website. A thump of the tail to Bill Gleason for the link.

- o O o -

Sir, I see you standing over the dead body of that man, and you're holding a gun. Care to explain yourself?

Well, officer, I shot him.

I figured that. But can you tell me why?

He threatened me.

What did he say?

Well he didn't say anything, actually.

Did he pull a gun or a knife, or take a swing at your?

No, not really.

What do you mean, "not really?" What did he do that you felt justified in killing him?

He gave me the stink eye and well, he kind of sucked his teeth. It really scared me.

Okay then. Sorry to bother you. Say, can you move aside so we can get at this guy? We have to take him to the morgue and call his family and stuff; I need to pull his wallet.

Sure; no prob.

- o O o -

This may be a scenario coming to a corner near you. That is, if Tony "up against the wall little Billy" Cornish (shown here; the photo is on his legislator's web page; aren't the baby's handcuffs really cute?) has his way. He's one -- among several; I'm just picking on Cornish because's he the Chairman of the Public Safety Committee in the House -- of the chief authors of HF 1467, a bill that, inter alia, removes the obligation of a person to retreat from a threatening situation, if possible, before opening fire.

Under the bill, if an individual "reasonably" (ah, the devil is in the details, isn't it?) believes there is a threat to him or her or a third person, they'll be justified in using deadly force to meet the threat. It's a little more complicated than that, but you can read the whole bill at the link. And here are some of the key sections of the bill. It's in pdf format, so these are just images of the sections; the underscoring means the language is to be added to existing law. The bill would be an amendment to Minn. Stat. 609.065.

Here are the circumstances when deadly force is authorized. The first subsection is already permitted under Minnesota law, the second probably is, too, save for the issue of a safe retreat. The third subsection is quite vague, and it is a complete departure from current Minnesota law. A "forcible felony" might include something like breaking and entering (burglary) on property that is not occupied, and which is not even yours. This is the true vigilante section of the bill.

Update: As commenter Stoo point out, forcible entry is defined in subd. 1 as felony level violence against a person. So you probably couldn't use you gun to break up a shoving match between other people, but you probably could use you gun on the one you "reasonably believed" was beating the other one up pretty good. I'll put the subdivision one definition in the comments.

The next subdivision of the proposed statute is the part that eliminates the duty to retreat if you can. The law has always permitted you to defend yourself, with deadly force if necessary, if you can't retreat. But you do have a duty to avoid violence if you can.

And here are two subdivisions that deal with the consequences to the user of deadly force after the event.

The bill says that if some one even claims self defense, they are immune from arrest -- which might include even detention at the place of an incident of the use of deadly force -- until an arresting officer weighs all of the circumstances. The would be hard to gainsay the absurdity of subdivision five and the complete impracticality of its application. It makes the police into arraignment judges. I cannot believe that even Tony Cornish thinks this is a good idea; he's a small town cop, remember?

The bill also immunizes the vigilante from civil liability -- to anybody, including bystanders waiting at the bus stop or walking down the street. The police don't even have that.

But subdivision six contains the most monumental change in the criminal law. Under current law, in both federal and state courts in Minnesota, a defendant has the burden of establishing self defense (Update: or at least coming forward with some evidence to establish the defense). Once the acts are established beyond a reasonable doubt, i.e., the weapon was used by the defendant, the defendant must show that the killing or wounding was justified. The proposed statute flips that burden around, placing it on the prosecution (Update: and apparently relieving the defendant of any obligation to come forward with any evidence supporting the defense).

The practical effect is that if a defendant says "I felt threatened," it is the prosecutor's burden to show that the defendant was not "reasonably" threatened.

The burden of proof for demonstrating, for example, insanity or diminished capacity as a defense to a crime also rests with the defendant. If this bill becomes law, it would give the user of deadly force a procedural advantage not shared by any other defendant seeking to use an affirmative defense.

Update: To put it a little more colloquially, on a claim of self defense, or the defense of another, the tie goes to the shooter.

Under the bill, if an insane man shot somebody, he would have a better chance of beating the rap by claiming he used the gun in self defense than defending on the basis that was insane.

And for my money, if you shoot somebody, or knife them, it ought to be you who has some explaining to do.

Cornish's bill is scheduled for a hearing -- in his own committee -- on Thursday.

Update: Forgetful old dog that I am, I neglected to mention that the post was prepared with the able editorial assistance of MNO.